24-1310
2d Cir.Sep 12, 2025Background
- Defendants John Costanzo (senior DEA agent) and Manuel Recio (former DEA agent, owner of Global Legal Consulting (GLC)) were indicted for conspiracy and substantive counts of bribery (18 U.S.C. § 201), conspiracy and substantive honest-services fraud (18 U.S.C. §§ 1349, 1343) for exchanging confidential DEA/NADDIS information for money.
- Trial evidence: Costanzo provided nonpublic DEA information (sealed indictments, forthcoming arrests, NADDIS searches) to Recio; payments flowed indirectly (e.g., EBCO $2,500 invoice, JEM invoices totaling $20,750, and other transfers) via entities and third parties including Edwin Pagan and David Macey.
- Jury convicted both defendants on all counts; district court sentenced Costanzo to 48 months and ordered forfeiture of $98,250, and sentenced Recio to 36 months and forfeiture of $23,250.
- On appeal defendants raised multiple claims: Fifth Amendment/compelled-production and use of GLC subpoenas; Sixth Amendment/Confrontation Clause; insufficiency of evidence (no quid pro quo); prosecutorial misconduct; improper admission of uncharged acts (Rule 404(b)); improper venue; and errors in forfeiture calculations.
- The Second Circuit affirmed the convictions in all respects but vacated and remanded the forfeiture orders (limited to the forfeiture determinations) for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subpoenas to GLC — Fifth Amendment (issuance) | Gov: subpoenas to corporate GLC were proper; collective-entity rule applies. | Recio: subpoenas compelled testimonial act by sole owner and thus violated his Fifth Amendment rights (Hubbell reliance). | Court: No Fifth Amendment violation — Braswell/collective-entity doctrine controls; subpoenas to corporate custodian were lawful. |
| Use at trial of GLC subpoena responses — Fifth Amendment (attribution) | Gov: introduced GLC documents; argued their probative force. | Recio: introduction and prosecutor arguments attributing production to him violated Braswell privilege and his Fifth Amendment right. | Court: Error to attribute production to Recio was plain under Braswell, but harmless given overwhelming independent evidence; no reversal. |
| Confrontation Clause (testimonial custodial statements attributed to Recio) | Gov: custodial documents were business records admissible; not testimonial or, if testimonial, harmless. | Costanzo: admission of testimonial statements by absent Recio (as custodian) and attribution violated Crawford and Bruton. | Court: Even if plain error, it did not affect substantial rights due to overwhelming evidence; convictions stand. |
| Sufficiency — quid pro quo requirement | Gov: circumstantial evidence (timing, unsupported invoices, payments, consciousness of guilt) sufficed to prove quid pro quo. | Defendants: Costanzo acted to help friends/DEA, not for money; no proof he received or intended to receive value in exchange. | Court: Evidence sufficient—jury could infer quid pro quo from temporal links, payments, sham invoices, and other benefits. |
| Evidentiary ruling — admission of email/memorandum (404(b)) | Gov: memorandum and email were inextricably intertwined with charged scheme and/or admissible under Rule 404(b) for intent/plan. | Recio: evidence was prejudicial prior-bad-act material unrelated to charged offenses. | Court: No abuse of discretion; evidence either part of the charged scheme or admissible 404(b) evidence. |
| Venue — Southern District of New York | Gov: venue proper where offense continued or overt acts occurred. | Defendants: no conduct occurred in SDNY; venue improper. | Court: Venue proper — phone call from SDNY and acceptance of benefits in SDNY were continuations/overt acts; foreseeable. |
| Forfeiture calculations and joint liability | Gov: forfeiture of specific payments as proceeds traceable to offenses; amounts assessed against each defendant. | Costanzo: some payments (Pagan transfers) not proceeds traceable to crime. Recio: district ordered duplicate forfeiture (same amounts against both) without joint-and-several language; Honeycutt limits. | Court: District did not clearly err on tracing/payments to Costanzo; but erred by ordering overlapping forfeiture without making liability joint-and-several — vacated forfeiture orders and remanded for correction. |
Key Cases Cited
- Fisher v. United States, 425 U.S. 391 (explains testimonial communication and Fifth Amendment scope)
- Braswell v. United States, 487 U.S. 99 (collective-entity rule: corporate custodian cannot assert personal Fifth Amendment privilege)
- United States v. Hubbell, 530 U.S. 27 (limits on compelled production when act of production is testimonial)
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause bars admission of testimonial statements absent prior cross-examination)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (testimonial nature of certain forensic/business statements)
- Bruton v. United States, 391 U.S. 123 (admission of co-defendant’s confession against another defendant)
- Honeycutt v. United States, 581 U.S. 443 (limits on holding co-conspirators jointly liable for proceeds they never acquired)
- United States v. Silver, 948 F.3d 538 (2d Cir.) (quid pro quo may be inferred from circumstantial evidence)
- United States v. Tanner, 942 F.3d 60 (2d Cir.) (forfeiture remedies and requirement to avoid double recovery; joint-and-several liability)